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Final Judgement in Klassen/Kvello false accusations | Government appeals and applies to intervene

THE COURT OF APPEAL FOR SASKATCHEWAN May 10, 1995

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This is the dissenting opinion of Mr. Justice Vancise which gave Donald and Helen Ross (the deaf birth parents of Michael, Michelle and Kathy) automatic right to appeal to the Supreme Court. Their appeals were successful.

Michelle's response about her birth father abusing her sexually is as consistent with her desire to protect Michael and to deflect attention away from their sexual activities as it is with having been sexually assaulted by Donald R. When one couples this with the trial judge's finding that Michael's out-of-court statement surrounding the same incident did not satisfy the criterion of reliability, it is difficult to reconcile how she could find one reliable and the other not. Lamer C.J.C. in Smith, stated he engaged in speculation about the reason for an out-of-court statement simply to show the statement was not one that provided the circumstantial guarantee of trustworthiness that would justify the admission of its contents by way of hearsay. Similar speculation in this case yields the same result. I am far less convinced than the trial judge on the degree of reliability of the statement given the children's propensity to lie and exaggerate, a fact which, I might add, was also noted by the trial judge (see p. 2960). I conclude that the statements made to Anita Klassen and to Dr. McKenna by Michelle do not satisfy the reliability criterion set out in Khan and Smith.

Exclusion of Expert Testimony of Dr. Elterman

The appellant, Donald R., called Dr. Elterman, a psychologist qualified to give evidence in the "area of child development and characteristics of child abuse." Dr. Elterman gave general evidence on the conduct usually manifested by children who have been sexually abused. He identified conduct which, while not conclusive in itself, could lead one to conclude a child had suffered from sexual abuse. In addition, he testified on the development of memory in young children and on the type of memory children develop as they mature. Dealing with the type of memory individuals have he stated:

... if I said to you, "I want you to think of a restaurant you've been to, say, a MacDonald's restaurant, and tell me what that looks like", then you would be able to do that, because you had been there and you would have a memory of that. If I told you to tell me about, say, what the capital of a country is, or whether a country is in a certain place, then that would be, that would be information, it would be verbal memory, it would not be visual memory.36

Dr. Elterman conducted interviews with each child for the purposes of identifying, among other things, what type of memory they possessed at critical times in their development. Each interview lasted approximately forty- five minutes. He described his testing in these terms: And so the way that I would describe this to them is to say, "When you've been somewhere and something has happened to you, you have pictures in your mind that you can call upon, and if you would close your eyes you could think of it, and visualize that particular picture". And it was quite clear to me after speaking to all three of them that their recollections of their birth parents, and what happened there, is what you can call verbal memory. In other words they say it because they say that, "I know that it happened, but I can't remember it happening", whereas when they talk about what happened at the Klassen's they can both -- they can both say it and remember it, and they also have visual memories. And I asked Michael whether he has pictures in his mind, whether he has visual memories of things that took place in his parents' home, and he said no. So his memory of what happened is one of information. It's at the information level, it's something that he believes took place. But if you ask him specifically, "Can you close your eyes and get a picture of what, of those things happening?" he has difficulty doing that.37

At this point, Crown counsel objected to the questioning. Crown Counsel stated: It strikes me that this evidence comes dangerously close to him saying whether or not you should believe the children, which, of course, he's not entitled to do.38

The essence of the objection was that Dr. Elterman was not entitled to describe his findings concerning the type of memory possessed by these children because his finding of the type of memory possessed by the children would somehow impinge on the trial judge's function to determine the credibility of the witnesses. The appellant's counsel contended the results of the examination of the children were both relevant and admissible and that such examination did not interfere with the right of the trial judge to determine the ultimate issue - the credibility of the complainants. The trial judge stated: But this thing goes to the very crux of this case, goes to the very matter that I have to decide. Whether these children remember.39

She continued: The law of evidence in regard to these matters is that an expert witness cannot usurp the functions of the Court. And in addition to that, it isn't really helpful to bring in evidence of actual questions and answers, because I don't know all the circumstances. I don't know what preceded them, I don't know what form they were put in, I don't know the circumstances.40 She concluded:

No, I'm quite prepared to accept the evidence as to the theory, as to the experience that -- the difference between verbal memory and picture memory, but it's different to go on from there and say that he has asked the children questions as to what they could see, or what they couldn't see, and that he has reached a conclusion from that, in this specific case.41

Thus, it would appear the trial judge was of the opinion that any evidence of the actual testing of the children with the objective of determining what type of memory they possessed at the critical time, or the extent of their visual or verbal memory, was not admissible. With respect, in my opinion the trial judge erred in refusing to permit Donald R.'s counsel to introduce such evidence. There is a difference between the expert deciding the issue of credibility and the expert providing an evidentiary base, based on his or her expertise, which the trial judge can use to determine credibility.

Professor A. Mewett in Editorial-Credibility and Consistency set out the approach to be followed in similar circumstances:

The relevance of his testimony is to assist no more the jury in determining whether there is an explanation for what might otherwise be regarded as conduct that is inconsistent with that of a truthful witness. It does, of course, bolster the credibility of that witness, but it is evidence of how certain people react to certain experiences. Its relevance lies not in testimony that the prior witness is telling the truth but in testimony as to human behaviour.42

This approach, which recognizes that certain aspects of human behaviour which are important to a judge or jury's assessment of credibility, but which are necessary to determine the ultimate issue, was approved by the Supreme Court of Canada in Marquard.

In Marquard McLachlin J. reiterated it is "a fundamental axiom of our trial process that the ultimate conclusion as to the credibility or truthfulness of a particular witness is for the trier of fact, and is not the proper subject of expert opinion".43 Evidence adduced solely to bolster a witness's credibility is not admissible. McLachlin J. stated: Expert evidence has been properly led to explain the reasons why young victims of sexual abuse often do not complain immediately. Such evidence is helpful; indeed it may be essential to a just verdict.

For this reason, there is a growing consensus that while expert evidence on the ultimate credibility of a witness is not admissible, expert evidence on human conduct and the psychological and physical factors which may lead to certain behaviour relevant to credibility, is admissible, provided the testimony goes beyond the ordinary experience of the trier of fact.44

The issue was again considered in R. v. Burns (R.H.)45 where a psychiatrist testified about some symptoms of sexually abused children. McLachlin J. speaking for the Court, stated:

The general rule is that expert evidence is admissible to furnish the court with scientific information which is likely to be outside the experience and knowledge of the judge and jury: R. v. Marquard (D.), [1993] 4 S.C.R. 223 at p. 243 (per McLachlin J.); R. v. BÇland, [1987] 2 S.C.R. 398, at p. 415 (per McIntyre J.); R. v. Abbey, [1982] 2 S.C.R. 24, at p. 42 (per Dickson J.). The use of experts to explain human behaviour may fall within this rule. The behaviour of a person who has been systematically abused is one example of a matter on which experts may assist. This use of expert evidence was approved by this Court in R. v. Lavallee, [1990] 1 S.C.R. 852, where expert evidence of the reactions and behaviour of a woman who had been repeatedly battered by her companion was admitted: see Wilson J.'s reasons at pp. 870-72.46 [emphasis added][citations omitted].

Based on his work with the complainant, the psychiatrist formed the opinion that the complainant had been sexually abused and testified to that effect.

McLachlin J. concluded: The respondent does not argue that psychiatric evidence bearing on a witness' behaviour is for that reason inadmissible. His objection is that "the opinion of Dr. Maddess went to the very root of the issue before the learned trial judge" and that "allowing that opinion usurped the function of the trial judge": the so-called "ultimate issue rule". However, the jurisprudence does not support such a strict application of this rule. While care must be taken to ensure that the judge or jury, and not the expert, makes the final decisions on all issues in the case, it has long been accepted that expert evidence on matters of fact should not be excluded simply because it suggests answers to issues which are at the core of the dispute before the court: R. v. Graat, [1982] 2 S.C.R. 819. See also Khan v. College of Physicians and Surgeons (Ont.) (1992), 9 O.R. (3d) 641 (C.A.) at p. 666 (per Doherty, J.A.).47

In the case at hand, the appellants sought to introduce evidence of human development. It is evidence concerning the type of memory human beings possess and the psychological assessment of the type of memories the complainants possessed concerning their birth parents' home. The purpose of Dr. Elterman's evidence was not to supplant the function of the trial judge to determine credibility, but rather to give the trial judge information beyond a lay person's capacity, to assist her to determine the ultimate issue credibility. Dr. Elterman was not called to testify whether the witnesses were telling the truth or whether he believed their testimony. He was called to explain the difference between visual and verbal memory and to give his opinion as to what type of memory the children possessed at a particular stage of their development. It remained for the trial judge to decide what impact that evidence had on the credibility of the witnesses.

In my opinion, there is no difference in the type of evidence the appellant sought to introduce and evidence of a doctor concerning the results of a medical examination. For example, the results of an examination of the eyesight of a witness' ability to see and identify objects at a distance. If a witness testified to having seen the accused at two hundred yards, surely the results of a medical examination by a qualified ophthalmologist that the witness suffered from a particular disease which made it impossible for him to see an object clearly at more than fifty yards, would be both relevant and admissible. It would be admissible, not to determine whether or not the ophthalmologist believed the witness, but rather to establish the witness' ability to see. It is evidence of human condition or frailty, not evidence of the truth or falsity of the witnesses' testimony. There is no difference, in my opinion, between that evidence and evidence pertaining to the type of memory possessed by a witness, and therefore, the ability of the witness to remember or not to remember specific instances. It remains for the trial judge to determine whether or not the witness is credible. Here, while the evidence would have a bearing on the ultimate decision, it should not be excluded because it suggests answers to issues which are at the core of the matter before the Court.

In my opinion, the trial judge erred in failing to permit the appellant to adduce the evidence on this issue. This evidence was crucial to a proper assessment of the evidence of these three infant complainants. It bears directly on the credibility of the three infant complainants.

Use of Video Taped Interviews in Cross-Examining of Carol Bunko-Rys

Donald R. contends the trial judge erred in refusing to permit the defendants to use certain video-taped evidence during the cross-examination of Carol Bunko-Rys, a counsellor and therapist to the children, to refresh her memory. Ms. Carol Bunko-Rys testified about the effects of suggesting answers to child witnesses and had been qualified as an expert on child sexual behaviour. She was unable to remember certain types of questions and disclosures made by Michael, including the number of people who had sexually abused him, and was unable to recall the sexual behaviour involved.

The appellant sought to use the video tapes of the interviews, at which she was present, to assist her in replying to their questions. They contend the trial judge erred in refusing to permit the defendants to cross-examine her on the interviewing techniques used by the investigating officer on the complainants and to use the tapes and transcripts of such interviews to refresh her memory in that regard. While no questions were put to Ms. Carol Bunko-Rys about her presence or participation in the interviews of the children, it is clear she attended the interviews of all the children conducted by Corporal Brian Dueck. In response to a question concerning who was present, he testified:

A Myself, the children, Carol Bunko was also present, Carol Bunko-Rys, the therapist.48

And further:

Q Okay. And what about the therapist, did she also take the same approach?

A You'd have to ask her. I'm not sure.

Q No, in what you saw of her dealings with the children?

A She listened to what they were telling her, yeah.

Q Did she, at any time, indicate to them that things were getting a bit off the wall?

A I'm not sure if she did. I don't recall that, no.

Q You don't recall her ever doing that?

A No.49

While the arguments put to the trial judge on this issue were unfocused and did not clearly express the precise purpose for the cross-examination and the necessity of the witness to refer to the tapes and transcripts to refresh her memory, it appears the defendants wished to do the following:

1. Cross-examine Carol Bunko-Rys on whether the children had given evidence voluntarily or whether it had been elicited after long and persistent questioning and coaching of the witnesses;

2. In those instances where the witness could not remember either the questioning or the kind of questioning, they proposed to have her review the transcripts of the questioning of the children at which she was present and in which she participated;

3. To discredit the children's evidence through cross- examination in ruling the video tapes or transcripts could not be used to refresh Ms. Carol Bunko-Rys memory, the trial judge stated:

As I understand the problem, the use of the transcript of the video is suggested for, first of all, to refresh the memory of the witness, but obviously it's not her memo, they're not her notes, they are nothing that she has certified as being true, and they're not in regard to statements made by her.

She continued:

Secondly, the use to discredit the credibility of another witness, I don't think is valid in this case because already through an attempt to be very fair to the accused, I have allowed the use of the transcript in this manner in cross-examination of the complainants. Thirdly, if it's to be used to prove the statement by another witness to show that there was coaching or manipulation, that kind of evidence should be obtained from cross-examination, but as a collateral issue you cannot go further to contradict whatever the witness says in that case. And if it is, as I suspect, really questions as to the procedure in eliciting declarations, to show that there was some sort of influence on the witnesses, I think those questions and answers should be put to the people who were -- who received those declarations, and they should be cross-examined, but not with reference to the transcript itself.50

The trial judge erred in ruling a witness is limited to reviewing his or her own statement for the purpose of refreshing memory. There is no requirement that the material used to refresh the memory of the witness be restricted to the witness's statement alone. The witness may be referred to a "writing" regarding events or matters observed or heard by the witness. Sopinka, Lederman and Bryant in The Law of Evidence in Canada state:

Some more recent cases have considered the question of whether a record made by means other than writing can be used to refresh memory. In R. v. Mills51, Winn J. allowed a police officer, who had overheard statements made by the two accused confined in separate cells to refresh his memory from a tape recording which had been placed in the corridor, and on which the accused's statements were recorded. The use of the tape was supported on the basis that the recording device merely took the place of a pen or pencil, and, alternatively, that the machine was set by the policeman to perform the function of making the record, and its accuracy was verified by the policeman while the statements by the accused were fresh in his memory.52

Similarly, J.D. Ewart in his text states:

In Canada, at present, there appears to be no specific requirement that material used to refresh a witness's memory be confined to his statement alone. There seems no reason why documents not necessarily made by the witness, leading questions in pre-trial interview, or physical exhibits could not be utilized by revive the memory of a witness. However, it would obviously be improper to use the statement or testimony of another witness to `coach' a witness with respect to his testimony.

It is also noteworthy that there appears to be no requirement that a witness's own writings, used to refresh his memory prior to trial, must have been made contemporaneously with the event. It is the accepted practice that the witness be given a copy of his evidence at the preliminary inquiry or earlier proceeding, in order to refresh his memory prior to trial.53

The Crown contends the defence failed to lay a proper foundation for the cross-examination of Ms. Carol Bunko- Rys. For example, she was not asked if she participated in the interviews, or the extent of such participation. As a result, the Crown contends the trial judge was correct in refusing to permit counsel to use the video tapes to contradict the witness or to elicit opinions concerning the interview process. In my opinion, reference to the tapes or the transcript of the video tapes was for the purpose of determining an issue which is not collateral, but rather the main issue the credibility of the complainants. It is not unlike R. v. McNabb,54 where the court found rebuttal evidence of the accused concerning his financial condition relevant to the determination of a primary issue, that is, the credibility of the accused. It was not collateral in the sense referred to in the authorities. The stated purpose of the cross-examination in this case was to show the evidence of the complainants had been elicited by the investigators after suggestions were made to them about what happened, and as a result, the evidence was not credible. The intended cross-examination was relevant to the truthfulness of the allegations of a central issue before the court.

The Crown also argues the appellants suffered no prejudice as a result of the ruling because they could have cross-examined the investigator, Corporal Brian Dueck, or could have had the video tapes examined by Dr. Elterman, an expert in these matters. That the defence chose not to do either does not take away from the fact they were prevented from cross-examining Ms. Bunko-Rys, on a matter vital to the determination of the guilt or innocence of the appellants. It is difficult to theorize or determine whether the trial judge's ruling affected the trial or whether such ruling caused actual prejudice to the appellants. In my opinion, the trial judge erred in failing to permit the appellants to use the transcript and video tapes of the interviews of the children to refresh the memory of Carol Bunko-Rys.

Unreasonable Verdict

All the appellants contend the verdict of the trial judge is unreasonable and unsupported by the evidence. They contend no properly instructed jury or judge acting reasonably could have convicted the appellants. It is their contention that the evidence is so contradictory, confused and bizarre, it cannot, in law, be taken as proof beyond a reasonable doubt of the charges against all the appellants. They also contend the trial judge erred in law in finding the testimony of the three complainants was credible and, when considered with the errors made by the trial judge, the verdict was unreasonable.

The standard of appellate review pursuant to s. 686(1)(a)(i) of the Code or the reasonableness of a decision was articulated in R. v. Yebes55 where McIntyre J. speaking for the court stated: The function of the Court of Appeal, under s. 613(1)(a)(i) of the Criminal Code, goes beyond merely finding that there is evidence to support a conviction. The Court must determine on the whole of the evidence whether the verdict is one that a properly instructed jury, acting judicially, could reasonably have rendered. While the Court of Appeal must not merely substitute its view for that of the jury, in order to apply the test the Court must re-examine and to some extent reweigh and consider the effect of the evidence. This process will be the same whether the case is based on circumstantial or direct evidence.56

Sopinka J., in R. v. S.(P.L.),57 speaking for himself, Lamer, C.J.C. and LaForest and McLachlin JJ., adopted the test in R v. Yebes (supra) and emphasized that a court of appeal can properly engage in a review the facts, pursuant to s. 686(1)(a)(i):

In an appeal founded on s. 686(1)(a)(i) the court is engaged in a review of the facts. The role of the Court of Appeal is to determine whether on the facts that were before the trier of fact a jury properly instructed and acting reasonably could convict. The court reviews the evidence that was before the trier of fact and after re- examining and, to some extent, reweighing the evidence, determines whether it meets the test. See R. v. Yebes, [1987] 2 S.C.R. 18.58

McLachlin J., for the court, made it clear in R. v. W.(R.)59 that the obligation of a court of appeal to reweigh and consider the effect of the evidence applies equally to verdicts based on findings of credibility. She noted however that, while the test remains the same: ...in applying the test the court of appeal should show great deference to findings of credibility made at trial. This Court has repeatedly affirmed the importance of taking into account the special position of the trier of fact on matters of credibility: W. v. The King, [1947] S.C.R. 268, at p. 272; R. v. M. (S.H.), [1989] 2 S.C.R. 446, at pp. 465-66. The trial judge has the advantage, denied to the appellate court, of seeing and hearing the evidence of witnesses. However, as a matter of law it remains open to an appellate court to overturn a verdict based on findings of credibility where, after considering all the evidence and having due regard to the advantages afforded to the trial judge, it concludes that the verdict is unreasonable.60 [emphasis added]

McLachlin J. put it this way in Burns, supra: In proceeding under s. 686(1)(a)(i), the court of appeal is entitled to review the evidence, re-examining it and re-weighing it, but only for the purpose of determining if it is reasonably capable of supporting the trial judge's conclusion; that is, determining whether the trier of fact could reasonably have reached the conclusion it did on the evidence before it: R. v. Yebes, R. v. W. Provided this threshold test is met, the court of appeal is not to substitute its view for that of the trial judge, nor permit doubts it may have to persuade it to order a new trial. [citations omitted].61

Thus, this Court has not only the right, but the obligation, to reweigh the evidence to determine whether the verdict is one which a judge, properly instructed, could have reasonably made, subject to the caveat that, when dealing with matters of credibility, one must take into account the special advantage of the trial judge. This is especially true when dealing with the evidence of child witnesses. In R. v. W.(R.), supra, McLachlin J., after referring to the comments of Wilson J. in R. v. B.(G.)62 concerning a commonsense approach to children's evidence, stated:

It is neither desirable nor possible to state hard and fast rules as to when a witness's evidence should be assessed by reference to "adult" or "child" standards to do so would be to create anew stereotypes potentially as rigid and unjust as those which the recent developments in the law's approach to children's evidence have been designed to dispel. Every person giving testimony in court, of whatever age, is an individual, whose credibility and evidence must be assessed by reference to criteria appropriate to her mental development, understanding and ability to communicate. But I would add this. In general, where an adult is testifying as to events which occurred when she was a child, her credibility should be assessed according to criteria applicable to her as an adult witness. Yet with regard to her evidence pertaining to events which occurred in childhood, the presence of inconsistencies, particularly as to peripheral matters such as time and location, should be considered in the context of the age of the witness at the time of the events to which she is testifying.63

It is pursuant to these principles that we must examine and reweigh the evidence to determine whether or not the verdict is unreasonable.

I start with, and cannot ignore, the heartfelt comments of the trial judge concerning the trauma, both physical and psychological, which have been inflicted on these children and her wish these children will "be left to heal in peace." It is obvious she was profoundly affected by the evidence of the children. It is clear from the evidence these children have been sexually abused what is less than clear is whether they were sexually abused by the appellants. We do know Mr. Klassen Sr. pled guilty to having sexually assaulted these children. The fundamental question on this appeal is whether these appellants have sexually assaulted the children.

The task of this Court is made more difficult by the fact the trial judge made no specific findings of sexual abuse and made no specific findings in relation to the accusations of sexual assault upon Kathleen and Michelle R. by Donald R. or the accusations of assault and assault with a weapon committed by Helen R. on Michael R. The trial judge found beyond a reasonable doubt that "each of the three children suffered sexual abuse from each of the three accused." (page 2964) This general finding is preceded by her comment that "I cannot separate many of the beliefs . . . into neat categories of how this happened and this is a misconception." (page 2962) This statement is followed by a further finding that she was left with a reasonable doubt "as to whether any one of them [the children] was made to touch the private parts of one or more of the accused and whether there was sexual intercourse in the form of penetration upon Michelle or Kathy by Donald R. or Donald W. or upon Helen R. by Michael." (page 2964)

It is evident the credibility of the complainants is critical to the reweighing and examination of the evidence to determine whether the verdict is unreasonable. The trial judge noted the surrounding details as to the particulars, such as time and frequency, are uncertain and confused. The appellants do not, however, contend the verdict is unreasonable because the complainants were unable to recount precise details, but rather the verdict was unreasonable because the complainants' testimony was bizarre, contradictory and riddled with admitted falsehoods and, when considered in its totality, not credible.

It is convenient to examine the testimony in four categories to determine whether the verdicts were unreasonable:

1. the sufficiency of evidence pertaining to the charges of assault and assault with a weapon by Helen R. on Michael;

2. the sufficiency of the evidence of the assaults by Don R. on Michelle and Kathleen;

3. the sufficiency of the evidence of the commission of sexual assault generally, given the findings on the charges of gross indecency;

4. the credibility of the testimony of the children.

In addition one must consider the effect of the errors in law made by the trial judge.

1. Assault with a weapon by Helen R. on Michael Michael's testimony was:

My mother stabbed me with a knife to get blood. My mom lit a lighter and burnt me here on my right hand. No one else burnt me.

The trial judge states she accepts that, in giving this testimony, Michael was trying to be accurate and truthful. But when one examines the evidence of Michael on these charges there is only one reference to stabbing. Michael testified his mother tied him to a post and then stabbed him to get blood. After she got a few drops of blood she let him go and later tried to tie him up again. (page 160). Similarly, on the accusation he was burned by Helen R., the trial judge quoted Michael as saying "My mom lit a lighter and burnt me here on my right hand. No one else burnt me." (page 2955). It is not clear from the judgment whether or not the trial judge based the conviction for assault on the burning with the lighter, but assuming she did, Michael's evidence on this point is contradictory and confusing. He testified he had been burned on several occasions, including being burned by his foster mother, Anita Klassen (pages 187 and 188). He also testified at the preliminary inquiry he had been burned by his Grandpa Vogen. At trial however, he claimed his testimony at the preliminary inquiry was false and that he was "daydreaming" (page 182). Anita Klassen and Lyle Thompson testified (pages 1280 and 1751) Michael had a penchant for playing with knives and with fire. Michael testified he liked knives (page 194) and the children cut each other (page 192).

Thus, while the trial judge stated the evidence proved beyond a reasonable doubt Helen R. committed the offences of assault as charged in counts 8 and 11, there is nothing in the judgment to indicate which evidence she relied on in coming to that conclusion, other than her general comments about the children's evidence. There is nothing in the judgment to indicate the contrary position, that he had been burned by someone else. Although a failure to give reasons is not an error in law in and of itself, incomplete reasons may constitute reversible error if there is an indication the trial judge did not deal with or appreciate relevant evidence. See Macdonald v. R.;64 Harper v. R.;65 R. v. Dupuis.66 In Harper, Estey J. for the majority of the Supreme Court of Canada stated: Where the record, including the reasons for judgment, discloses a lack of appreciation of relevant evidence and more particularly the complete disregard of such evidence, then it falls upon the reviewing tribunal to intercede.67

Thus, where the trial judge's reasons show he or she has failed to appreciate an important point, leading to the conclusion the verdict is unreasonable, an appellate court has an obligation to intervene.68

 

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